ACTA: Protecting Innovation or Safeguarding Imperialistic Needs?

Abstract

In recent years, it has become progressively clear that the TRIPS regime is in trouble. Although lawmaking in the World Trade Organization (WTO) has essentially stalled, there is a continuing need to recalibrate the rules applicable to knowledge production. There has been quite some cerebration for couple of years now, concerning the Anti-Counterfeiting Trade Agreement (ACTA), a rather plurilateral agreement with a global impingement. Its exponents describe it as a response to the “increase in global trade of counterfeit goods and pirated copyright protected works.” However, much evidence exists to suggest that, if ratified, it would criminalize peer-to-peer file sharing, subject iPods to border searches and allow internet service providers to monitor their customers’ communications to name a few. The goal of the ACTA negotiations, according to the states partaking in it behind closed doors, is to provide an international framework that meliorates the enforcement of intellectual property right laws. The pith of ACTA revolves around the institutional design question on how to create an intellectual property system responsive to changing circumstances by examining how the WTO can best make use of WIPO’s experience and expertise in intellectual property matters.

Calls for a war on counterfeiting and piracy have intensified, led by a coalition of multinational corporations in the entertainment, pharmaceutical, and luxury goods industries, that rely on expanding IP protection for their business models. With most of these companies based in the US, it was only a matter of time that US came up with such an agreement. The US government has accepted the fact that negotiating it as an executive agreement means, by definition, it can’t be inconsistent with the US law. Practically, Congress may not be that eager to change the law in any trade related area, so any agreement that would require a change in the law would be much harder to get through. So there isn’t much doubt that what the US is putting forward, would not require changes in the US laws. So the question now arises, if ACTA doesn’t require any change in the US laws, and other countries agree about that, what’s in it for them? One of the preliminary concerns raised by its opposers is that ACTA may give competitors and patent trolls tools such as huge deterrent damages, statutory damages, freeze the entry of goods, suspend the release of infringing goods for at least one year, destruction of goods, etc.

Vexations have also been raised over the furtiveness being maintained regarding the text of the agreement. There is a need for the public to have access of the ACTA texts to protect its own interests. Public interest representatives need to have just as much influence over negotiators as large content owners.

This paper starts off by foraging the need and motivation for such an agreement. It then proceeds to look into the various other concerns and issues that will rise out of the ratification of ACTA. The three major issues that will be thoroughly discussed are (un)constitutionality of ACTA, its impact on public interests and its impact on the current WIPO/WTO regime.